cited; Varney v. Justice, 86 Ky. 596; Daily v. Swope, 47 Miss. 367; Newell v. People, 7 N. Y. 9.
Rollo F. Hunt, for respondent.
Courts will listen distrustfully to a claim of newly discovered evidence, and such a ground for a new trial is not favored. 16 C. J. 1182; 16C. J. 1182-1183; R.C. L. vol. 20, § 73; Fleet v. Hollenkemp, 13 B. Mon. (Ky.) 219; 56 Am. Dec. 563.
“The additional evidence, to afford opportunity for the introduction of which a new trial is sought, must be duly discovered, by which expression is meant that it must have been discovered since the trial. If discovered before, or at the trial, and no continuance of the trial was applied for, an answer to the motion that no diligence is shown will be sufficient to defeat it, no matter what else may be shown. McGregor v. Great Northern Railway, Co. 31 N. D. 471; Alymer v. Adams, 30 N. D. 514.
The new evidence must be material and competent. 16 C. J. 1183.
“The newly discovered evidence is purely impeaching and the general rule is that such evidence does not furnish a good ground for granting a new trial. Heyrock v. McKenzie, 8 N. D. 601; 80 N. W. 762.
The granting or denial of a new trial is a matter of discretion with the trial court. Alymer v. Adams, supra; McGregor v. Great Northern Ry. Co., supra.
Birdzell, J. On November 13, 1920, the defendant was convicted in the district court of Ramsey county of selling intoxicating liquor to be used as a beverage, the alleged offense having been committed on the 11th of July, 1920. This is an appeal from the judgment of conviction and from orders entered denying the defendant’s motions in arrest of judgment and for a new trial. There are only two questions presented on the appeal: First, that the defendant was not convicted in a legally constituted court; and, second, that the court erred in denying the defendant’s motion for a new trial on the ground of newly discovered evidence. The first question was raised at the beginning of the trial by an objection entered on the record by the defendant’s attorney going to the jurisdiction of the court to proceed in the case in any manner on the ground that the court was not legally constituted, by reason of the fact that chap. 16 of the Laws of the Regular Session, 1919 (the Judicial
